SCHOLAR PROPOSES 'BRAIN BIRTH' LAW

By PETER STEINFELS, Special to The New York Times

Published: November 8, 1990

IOWA CITY, Nov. 7—
A model piece of legislation aimed at resolving the nation's abortion debate, proposed at an international conference here, would extend legal protection to fetuses at a point when integrated brain functioning begins to emerge -- about 70 days after conception.

Hans-Martin Sass, a professor of philosophy and senior research fellow at the Kennedy Institute of Ethics at Georgetown University, said Tuesday that this definition of the beginning of life paralleled the widely used definition of death as the irreversible cessation of brain activity.

The brain-death standard has been adopted in all but a handful of states. Legislators have often based statutes on the Uniform Determination of Death Act, a model measure proposed by a Presidential advisory commission in 1981. Mr. Sass contended that a similar public consensus could be built around his proposal.

Although this idea has been presented before, in philosophical literature, Mr. Saas said this was the first time it had been proposed as a model statute. Symmetry and Compatibility

Besides featuring "symmetry between brain life and brain death," Mr. Sass said his model law was compatible with medical understanding of human development before birth and with "most of the major cultural traditions." He cited the beliefs of Aristotle, St. Augustine and Thomas Aquinas that the fetus gained moral status as it reached a point of having identifiable human traits.

Mr. Sass said his proposal focused on the biological "precondition" for what is considered specfically human, "reason and communication, cognition and consciousness." He also said he had chosen "a morally conservative" point in brain development, when the connections between nerve cells first appear in the area that will become the embryo's cerebral cortex.

The Supreme Court's 1973 ruling allows abortions to take place in the first six months of pregnancy, and even later if the mother's health is endangered. Mr. Sass's proposed law would considerably shorten that period. But since 90 percent of abortions now take place in the first 12 weeks, Mr. Sass's 10-week dividing line would still permit the vast majority of them.

His proposal would also permit forms of birth control that prevent fertilized eggs from implanting in the woman's uterus. In addition, it would permit procedures like in vitro fertilization and research on fertilized eggs that will be discarded in the laboratory. It would also permit the donation of tissue or organs from fetuses in their early stages of growth. German Legal Protection

Such procedures have given rise to debates about disposing of frozen embryos preserved for possible future use and the use of fetuses for research or organ transplants.

Germany has just passed an embryo protection law forbidding all experimentation on early human life while still permitting abortion in the first three months of pregnancy, an outcome Mr. Sass called inconsistent.

The conference here was brought about not only by the abortion issue but also by the debate over surrogate motherhood and new questions about the moral and legal obligations on pregnant women to avoid behavior harmful to their fetuses.

With support from the Ford Foundation, 70 scholars from 10 nations met from Sunday through today. Archbishop Questions Idea

Although many speakers here were explicitly critical of the Roman Catholic Church's position that human life worthy of legal protection begins at conception, there were no representatives of that position on the program.

Reached at a conference in Chicago, Archbishop Rembert Weakland of Milwaukee said the "brain birth" concept had been discussed for some time. Although he has said that arguments over abortion rights had to be considered carefully, he questioned the parallel in Mr. Sass's proposal between the beginning and the end of the life span.

"It is hard to compare the two and take them as being equivalent," he said. "There is a potential for brain activity in the period leading up to this point of fetal development, while there is no such potential after brain activity has ceased at the other end of life."

Mr. Sass rejected this emphasis on potentiality as morally invalid, but he said that he regretted that no advocate of it had been present to respond to his proposal.